JUDGMENT Sole accused in C.C. No. 25 of 1998 on the file of the Additional Special Judge for S.P.E. and A.C.B Cases-cum-V Additional Chief Judge, City Civil Court at Hyderabad, filed this appeal challenging the judgment dt. 15-4-2002 passed in C.C., where under and whereby he was convicted of the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 (for short, ‘the Act, 1988') and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 1,000/- in default to suffer simple imprisonment for three months, under each count, and both the sentences of imprisonment were ordered to run concurrently. 2. The brief facts that are necessary for disposal of the present appeal may be stated as follows: The Accused worked as Mandai Agricultural Officer, Kodumur Mandai, Kurnool Dist from 5-12-1990 to 9-6-1997 and also worked as Agricultural Officer (soil conservation), Orvakal Mandai, Kurnool District from 9-6-1997 to 17-1-1998. P.W. 1 is a partner in Sri Sri Raghavendra Agro Chemicals Nandyal. On 20-12-1996 P.W.1 booked a consignment of pesticides to Sri Lakshmi Venkateswara Agro Chemicals Kodumur, through Navatha Transport. During the transport of the consignment enroute to Kodumar, at Navatha Transport office, Kurnool, P.W. 5 Asst. Commercial Tax Officer (Intelligence) Kurnool Checked the and detained the consignment on 21-12-1996 for non payment of sales tax and as such the consignment was kept undelivered with the agent of Navatha Transport Officer, Kodumur. On 19-1-1997the accused surprised the Navatha Transport Office, Kodumur and issued written detention orders in respect of the consignment of the Agent, Navatha Transport directing not to deliver the consignment to the concerned party for contravention of certain provisions of the Pesticides Act. In February, 1997, P.W. 1 approached the accused and requested to issue the release orders, but, the accused while pointing out certain lacune in particulars of consignment, demanded Rs. 5,000/- to do official favour i.e., to issue release order in respect of the consignment. On 27-12-1997 on receipt of a notice from the pesticides company, P.W. 1 learned the sales tax and got the release orders from commercial tax department and approached P.W. 4, Mandai Agricultural Officer and as there was no record pertaining to detention of pesticides, he directed him to approach the accused at Kurnool. On 16-1-1998 he met the accused at the office of the Asst. On 16-1-1998 he met the accused at the office of the Asst. Director of Agriculture (Soil Conservation) and requested to issue the release order. The accused reiterated his demand of Rs. 5,000/- to issue the release order. When P.W. 1 expressed his inability to pay such huge amount, the accused reduced the demand to Rs. 3,000/- and issued release order with ante-date as he was no more Agricultural Officer at Kodumur, with a condition thatP.W.1 should pay the demanded bribe on the next day at the office of the Asst. Director of Agriculture (Soil Conservation), Kurnool and threatened him with dire consequences if he failed to do so. Then unwilling to pay the bribe P.W. 1 lodged a complaint with P.W. 8 DSP/ ACB, Kurnool on 16-1-1998, and the said complaint was registered. The DSP/ACB, after observing necessary formalities during pretrap and post trap, organized a trap on 17-1-1998 and the trap proved successful. Hence, the charge. 3. The following charges are framed against the appellant/accused. Carge NO.1: That you being a public servant working as Agricultural Officer, Soil Conservation, Kondumur Mandai, Kurnool District in the month of February, 1997 demanded Rs. 5000/from S. Pratap Reddy R/O Ontelaga (V) Gosupadu (M) Kurnool Dist. As illegal gratification otherthan legal remuneration to do the official favour viz., to issue the release orders of consignment of Pesticides detained with the Agent Navatha Transport Officer Kodumur and on 16-1-98 as Agricultural Officer at Oravakal reiterated your demand from the said S. Pratap Reddy for the above said purpose and on his expressing inability to pay Rs. 5,000/- reduced it to Rs. 3,000/- and on 17-1-98 at about 12.50 p.m. at the office of Asst. Director Agriculture (Soil conservation) Kurnool, in pursuance of the said demand, you accepted the sum of Rs. 3,000/- from said S. Pratap Reddy as illegal gratification other than legal remuneration as a motive or reward for doing an official favour viz., to issue release order of Pestescides detained with the Agent of Navatha Transport Kurnool and thereby you committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and within my cognizance. 3,000/- from said S. Pratap Reddy as illegal gratification other than legal remuneration as a motive or reward for doing an official favour viz., to issue release order of Pestescides detained with the Agent of Navatha Transport Kurnool and thereby you committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and within my cognizance. Charge NO.2: That you being public servant working as Agricultural Officer (Soil conservation) Orvakal, Kurnool District on the dates, time and place as mentioned in the charge No.1, by corrupt or illegal means or otherwise abusing your position as such public servant, demanded and obtained for yourself a pecuniary advantage to the extent of Rs. 3,000/- in pursuance of your earlier demands in February, 1997 and on 16-1-1998 from S. Pratap Reddy for the above said purpose and thereby committed an offence of Criminal misconduct specified in Sec. 13(1)(d)(i)(iii r/w Section 13(2) of P.C. Act, 1988 and within my cognizance." When the charges were read over and explained to the accused in telugu, he pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws. 1 to 9 and got marked Exs. P-1 to P-8, besides case properties M.Os. 1 to 8. D.W. 1 was examined and Ex. D-1 was marked, on behalf of the accused. 5. The trial Court, accepting the evidence adduced by the prosecution, found the Appellant/Accused guilty of the charges for the offences under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 and accordingly, convicted and sentenced him as above. Challenging the same, the present Criminal Appeal is preferred. 6. The learned senior counsel Sri C. Padmanabha Reddy, appearing for the appellant/Accused contended that, the solitary witness, who speaks about the alleged demand and acceptance of bride, did not support the prosecution case and he was turned hostile, and therefore basing on his evidence the accused cannot be convicted; that, even the recovery of the tainted notes from the possession of the accused is not a circumstance against the accused, because the accused received the amount towards the discharge of hand loan taken by P.W. 1 and therefore the necessary ingredients for the offences under Sections 7 and 13(1 )(d)of the Act, 1988 have not been established beyond reasonable doubt. Hence, he prays to set aside the convictions and sentences. 7. Hence, he prays to set aside the convictions and sentences. 7. On the other hand, the learned Standing Counsel appearing for respondent contended that, though P.W. 1 turned hostile, the evidence on record would go to show that the Appellant was found in the possession of tainted currency notes and when the Sodium Carbonate test was conducted, the solution turned into pink colour; that, except his self serving statement during the course of examination under Section 313 Cr.P.C. no evidence is adduced to show that the accused is related to P.W.1; that, after an elaborate consideration of the evidence on record, the trial Court found the appellant/accused guilty and there are no grounds to interfere with the convictions and sentences recorded by the trial court. Hence, he prayed to dismiss the Criminal Appeal. 8. Now the point for determination is whether the prosecution proved its cases against the appellant/accused for the offences alleged beyond reasonable doubt, and whether the judgment of the trial Court is legal, correct and proper? 9. The case of the prosecution is that on 40-12-1996, PW.1 sent consignment of some pesticides to Sri Laxmi Venkateswara Agro Chemicals, Kodumur through Navatha Transport and the consignment was stopped and detained on 21-12-1996 by the Assistant Commercial Tax Officer, Kurnool on the ground that sales tax was not paid. On 29-12-1997 i.e., nearly one year thereafter, P.W. 1 paid tax of Rs. 1335/- and got released the stock. It is not in dispute that, the Appellant worked as Agricultural Officer, Kodumur Mandai, Kurnool District from 5-12-1990 to 9-6-1997. The allegation is that, the accused refused to give the release order unless an amount of Rs. 5,000/-was paid towards bribe but reduced the same to Rs. 3,000/-. As P.W.1 was not willing to pay that amount, he lodged Ex. P-1 complaint to P.W.8 DSP, ACB, Kurnool. Thereupon, P.W.8 registered a case and after observing the necessary formalities the cash of Rs. 3,000/-was applied with phenolphthalein powder and the same was handed over to the accused. Then the trap party went to the office of the accused and seized the currency noted from the accused and when both hands of the accused were subjected to phenolphthalein test, they turned to pink colour. Thereafter, post trap proceedings, which contained the events that took place in the office of the appellant, was drafted. 10. Then the trap party went to the office of the accused and seized the currency noted from the accused and when both hands of the accused were subjected to phenolphthalein test, they turned to pink colour. Thereafter, post trap proceedings, which contained the events that took place in the office of the appellant, was drafted. 10. Public Servant taking gratification other than legal remuneration in respect of an official act, is an offence punishable under Section 7 of the Act, 1988. 11. Section 13(1)(d) of the Act, 1988 read thus: "A public servant is said to commit the offence of criminal misconduct, if he, (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any Public interest." 12. Admittedly, no witness accompanied P.W.1 at the time of laying trap. Therefore, with regard to the demand and acceptance of bribe amount by the appellant/accused, the only evidence available in record is the evidence of P.W.1. But, P.W.1 did not support the case of the prosecution and turned hostile. The law is well settled that simply because a witness was declared hostile by the prosecution, it does not mean that his evidence would meaning from the record. Such part of his testimony which inspires confidence, can be used to corroborate the other evidence, if nay, available on record. But, admittedly, in this case, there is no such evidence available on record to corroborate the inspiring evidence of P.W. 1. On this aspect, it is pertinent refer to a decision reported in Satpal v. Delhi Administration1 wherein it is held thus: "53. In the light of the above principles, it will be seen that, in law, the part of the evidence of the Panch witnesses who were thoroughly cross-examined and contradicted with their inconsistent police statements by the Public Prosecutor, could be used or availed of by the prosecution to support its case. But as a matter of prudence, on the facts of the case, it would be hazardous to allow the prosecution to do so. But as a matter of prudence, on the facts of the case, it would be hazardous to allow the prosecution to do so. These witnesses contradicted substantially their previous statements and as a result of the cross-examination, their credit was substantially, if not wholly, shaken. It was therefore, not proper for the courts below to pick out a sentence or two from their evidence and use the same to support the evidence of the trap witnesses." 13. Even P .W. 2, who is one of the mediators present at the time of drafting pre-trap proceedings, simply stated that they have not examined whether P.W. 1 willingly gave Ex. P-3 complaint or whether there was any coercion to P.W. 1. There cannot be any dispute that the contents of Ex. P-3 complaint cannot be used as substantive evidence so as to convict the accused. At best, the recitals can be used to corroborate the evidence of the marker. Since the marker himself did not support the case of prosecution, the contents of Ex. P-3 cannot be used to prove the case of prosecution. 14. The evidence of P.W. 2wouldfurthergo to show that the Inspector of Police got applied the phenolphthalein powder to the currency notes and the same was handed over to P.W.1, and the investigating officer specifically directed P.W.1 to hand over the same whenever the accused officer demanded the money. He also speaks about his presence at the time of conducting phenolphthalein test to both the hands of the accused and also the currency notes and the inner lining of left pant pocket of the accused, and the test giving positive result. 15. Even the accused did not dispute about receipt of money from P.W.1. The explanation given by accused was that to get the release order of fertilizers, P.W. 1 has taken Rs. 3,000/- from him and paid the tax to the Commercial Tax Department and got the release order, and thereafter P.W.1 repaid that amount to him, and therefore, he was in the possession of that money. Mere recovery of tainted amount from the possession of the accused, cannot be a ground to convict the accused for the offence under Section 7 or 13(1)(d) of the Act, 1988. 16. Mere recovery of tainted amount from the possession of the accused, cannot be a ground to convict the accused for the offence under Section 7 or 13(1)(d) of the Act, 1988. 16. The learned senior counsel for the appellant relied upon the decision in C.M. Girish Babu v. CBI, Cochin, High Court of Kerala2, wherein it is held thus: "It is well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the same would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification". 17. The learned senior counsel appearing for the appellant also relied on a decision in Union of India through Inspector, CBI v. Purnandu Biswas wherein it is held that, in this case demand of illegal gratification by the respondent has not been proved. 18. The learned senior counsel for the Appellant also placed strong reliance on a decision in V. Venkata Subbarao v. State4 wherein it is held as follows: "In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved". 19. The learned counsel for the appellant also relied on the decision in T Subramanian v. State of Tamilnadu5 wherein it is held thus: "Mere receipt of Rs. 200/- by the appellant from P.W.1 on 10-7-1987 (admitted by the appellant) will not be sufficient to fasten guilt under Section 5(1)(a) or Section 5(1)(d) of the Act, in the absence of any evidence of demand and acceptance of the amount as illegal gratification" . 20. The learned senior counsel for the Appellant further relied on the decision in Om Prakash v. State of Haryana (6) wherein it is held that, even otherwise, where demand had not been proved, Section 20 will also have no application. (Union of India v. Pumandu Biswas (2006 (1) ALT (Crl.) 106 (SC) = 2005 (8) SCJ 259) and T Subramanian v. State of TN. 21. (Union of India v. Pumandu Biswas (2006 (1) ALT (Crl.) 106 (SC) = 2005 (8) SCJ 259) and T Subramanian v. State of TN. 21. From the above decision it is clear that unless there is evidence to show that the accused demanded any bribe amount for doing any official favour, the presumption under Section 20 of the Act, 1988, will not be drawn. In this case, there is absolutely no evidence to show that the accused demanded any amount from P.W.1 towards illegal gratification or showing of any official favour. 22. In so far as the recovery of tainted currency notes is concerned, at the relevant point of time of the incident, admittedly the Appellant was working as Agricultural Officer (Soil Conservation), Orvakal MandaI. This case relates to Agricultural Office, Kodumur Mandal, Kurnool District but the accused was not working as Agricultural Officer at Kodumur Mandai as on 17-1-1998. The incident took place in the Office of the Assistant Director (Soil Conservation), Krishna Nagar, Kurnool. The distance between Kodumur and Kurnool about35 kilometers. This was admitted by the P.W. S-D.S.P. himself in the cross-examination. Therefore there was no official favour pending with the accused to be done to P.W.1 as on the date of the incident. Even the evidence of P.W.1 would go to show that the accused demanded bribe on 28-12-1997. But the alleged demanded amount was paid about one year thereafter. 23. I n view of the fact that the seizure of the tainted notes from the accused is not dispute, it has to be seen whether there is any explanation given by the accused and whether he has accounted for the same or not. For providing the case of the accused, he can show it by preponderance of probabilities and need not prove his case beyond reasonable doubt. For that, he need not examine any witnesses and he can show it in the cross-examination of the prosecution witnesses that the amount was given otherwise than alleged by the prosecution. It the explanation of the accused coupled with the evidence elicited in the cross-examination is more probable then it can be said that the burden placed on his shall stand discharged. 24. P.W.1 in his evidence clearly stated that he has to pay Rs. 1,500/- towards tax and another sum of Rs. It the explanation of the accused coupled with the evidence elicited in the cross-examination is more probable then it can be said that the burden placed on his shall stand discharged. 24. P.W.1 in his evidence clearly stated that he has to pay Rs. 1,500/- towards tax and another sum of Rs. 1,500/- towards penalty for the release of the fertilizers stock, and therefore he approached the accused officer, as he knew him, and requested him to lend the amount of Rs. 3,000/- and therefore, the accused lent that amount for the purpose of paying to the sales tax department; that after taking that money he approached the sales tax office on 29-12-1997, aid the same to the department under Ex. P-2 and got release order. Further more, there was a spontaneous explanation given by the accused the he received amount as discharge of loan by P.W. 1. No doubt the statement made by the accused at the time of post trap proceedings is not an evidence, but it can be taken as conduct of the accused to offer explanation. That conduct is consistent with the other evidence on record. From the explanation given by the accused coupled with the admission made by P.W.1, it can be held that the case of the accused is more probable that he received the amount towards discharge of the loan. Further, in view of the fact that no official favour was to be done by the accused officer to P.W.1 as on the date of the incident, the explanation offered by the accused can be accepted. This aspect of the case has not been considered by the trial Court and no finding has been recorded with regard to admissibility of evidence of P.W. 1 to convict the accused. As already pointed out, except the evidence of P.W.1, there is no other evidence to prove the offences under the Act, 1988. In view of the fact that, P.W.1 did not support the case of the prosecution and was declared hostile by the prosecution, his evidence cannot be a basis for conviction. 25. Coming to the offence under Section 13(1)(d) of the Act, 1988, admittedly, tainted amount has been recovered from the possession of the accused. But, as seen from the evidence, the case of the accused is otherwise. 25. Coming to the offence under Section 13(1)(d) of the Act, 1988, admittedly, tainted amount has been recovered from the possession of the accused. But, as seen from the evidence, the case of the accused is otherwise. The law is well settled that when two views are reasonably possible from the evidence adduced by the prosecution-one in favour of the prosecution and another in favour of the accused, the view which is in favour of the accused shall be taken into consideration. Therefore, the balance has to be tilted in favour of the accused. The case of the prosecution is that the accused received the amount towards bribe. But, the explanation given by the accused is that, he received the amount as the discharge of the amount lent to P.W.1. As seen from the evidence of P.W.1 and other circumstances of the case, the explanation offered by the accused is reasonably possible. In view of the fact that the evidence of P.W.1 coupled with the spontaneous explanation given by the accused, would reveal that the accused received that amount towards repayment of the loan given by him, benefit of doubt should be given to the accused. 26. In view of the foregoing discussion, I have no hesitation to hold that the prosecution failed to establish its case against the accused for the offences alleged, beyond reasonable doubt, and the appellant/accused is entitled for benefit of doubt. 27.lnthe result, Criminal Appeal is allowed setting aside the judgment dated 15-4-2002 in C.C. No. 25 of 1998 on the file of the Additional Special Judge for S.P.E and ACB Cases cum-V-Additional Chief Judge, City Civil Court at Hyderabad. The appellant/accused is found not guilty of the charges leveled against him and he is acquitted of the said charges. The bail bonds of the appellant/accused shall stand cancelled, and the fine amount, if any paid by the appellant/accused shall be refunded to him forthwith.